Court's legitimacy at stake on ACA

Even before the Supreme Court delivers its decision about the Affordable Care Act, which is expected Thursday, there is already a sharply divided legal — and political — debate about the role of the court.

Some observers, such as Akhil Reed Amar, a leading legal scholar who has devoted his career to a close read of the Constitution, have said that their life’s work would be called into question if the court strikes down the law. Commenting to Ezra Klein at The Washington Post about the impending ruling, Amar said “if they decide it by 5-4, then yes, it’s disheartening to me, because my life was a fraud.” It shows, he said that the law doesn’t really matter. “What mattered,” Amar said, “was politics, money, party and party loyalty.”

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Others, however, shrug their shoulders, scoffing that it’s always been just about politics. Some cynics always doubt the court’s good faith. Health care law opponents, meanwhile, have swiftly and aggressively accused anyone who questions the justices’ commitment to the rule of law over partisan ideology of playing politics by even suggesting that policy preference could be behind a ruling that strikes down the act.

Is it illegitimate to question the court’s legitimacy if it strikes down the reform? Is it wrong to hold Supreme Court justices to their duty to apply the clear text and history of the Constitution as well as the court’s precedents — including opinions of sitting justices just a few years ago — rather than expect their decisions to be based on tea party talking points and partisan affiliation? If it is, then I don’t want to be right.

There are serious, legitimate critiques to be made if Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy, in particular, join a ruling that strikes down the ACA.

Kennedy and Scalia, for example, both voted to uphold a federal ban on possession of marijuana grown under local law for personal medicinal use because the ban was part of broader regulation of interstate commerce, in the 2005 decision Gonzales v. Raich. ACA opponents distinguish this case from health care reform by saying the individual mandate is not constitutionally “proper.”

But as Judge Jeffrey S. Sutton of the 6th Circuit Court of Appeals — a prominent conservative and former Scalia clerk — wrote when he voted last June to uphold the mandate’s constitutionality, “if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.” Based on Raich, the mandate should be squarely constitutional.